1996/10/15 - IV. ÚS 275/96: SENATE ELECTIONS I
HEADNOTE:
If the purpose of the Act on Elections is to bring to life and set down more detailed
provisions on the basic political right to elect and stand for election, then contested
provisions must always be interpreted in a manner that is solicitous of this right, so as
to facilitate, to the extent possible, the right to elect and stand for election, and not
the contrary.
CZECH REPUBLIC
CONSTITUTIONAL COURT
JUDGMENT
IN THE NAME OF THE CZECH REPUBLIC
The Constitutional Court of the Czech Republic, in the matter of the constitutional
complaint of PhDr. J. Š., against the 7 October 1996 resolution of the Supreme Court of
the Czech Republic, action no. Ovs 78/96/Št, in conjunction with the 27 September 1996
decision of the Central Electoral Commission, action no. ÚVK 281/1996, and the decision of
the District Electoral Commission for District No. 54, headquartered in Znojmo, all of
which rejected his application for registration for the election to the Senate of the
Parliament of the Czech Republic, decided, thusly:
The 7 October 1996 resolution of the Supreme Court of the Czech Republic, action no.
Ovs 78/96/Št, the 27 September 1996 decision of the Central Electoral Commission,
action no. ÚVK 281/1996, and the decision of the District Electoral Commission for
District No. 54, headquartered in Znojmo, all of which rejected the application of
PhDr. J. Š for registration to the Senate election, are hereby annulled.
REASONING
In his constitutional complaint, delivered to the Constitutional Court of the Czech Republic
on 11 October 1996, the complainant requested the annulment of the 7 October 1996
resolution of the Supreme Court of the Czech Republic, action no. Ovs 78/96/Št, which
turned down his petition seeking his registration as a candidate for the election to the
Senate in Electoral District No. 54, after his registration application had already been
rejected by the District Electoral Commission on 18 September 1996, and his appeal to the
Central Electoral Commission was unsuccessful as well. All of these bodies gave, as the
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grounds for rejecting his registration, the fact that his application contained no document
evidencing Czech citizenship, so that it was incomplete.
The complainant states that he is naturally aware of the fact that Czech citizenship is one
of the conditions for candidacy given in Art. 19 para. 2 of the Constitution of the Czech
Republic.2) However, in his view the Electoral Act does not prescribe the specific manner
in which citizenship should be proven. Such legal provisions are contained in Act No.
40/1993 Coll., on the Acquisition and Loss of Citizenship of the Czech Republic, specifically
in § 20,3) which distinguishes a total of four kinds of documents, all of which are equally
valid. The civil identity card, which in practice is used most often, comes under letter
a). The complainant also made use of this document to prove his citizenship when, on 16
September 1996, he attempted to submit a copy of it as part of the application he filed
with the registrar of the District Electoral Commission. However, the registrar of the
commission refused to accept it. For this reason, the complainant obtained, without
unnecessary delay (that same day) a certificate of citizenship from the City Council of
Brno, which, together with a certified copy thereof, he delivered to the registrar of the
District Electoral Commission on the following day, 17 September 1996. None of the stated
bodies referred to above ever entertained any doubts concerning the complainant’s
citizenship. What is more, as the complainant states, § 14 para. 1(c) of Interior Ministry
Regulation No. 74/1996 Coll.,4) which lays down detailed provisions for implementing the
Electoral Act, gave the district electoral commissions and the Central Electoral Commission
the authority, without problem, to verify facts relating to the citizenship by enquiring at
authorized offices.
The complainant concurs with the factual findings in the case as they were stated in the
contested Supreme Court resolution; however, he is of the opinion that the formulation of
the legal rule contained in it infringes his fundamental right to compete under equal
conditions for elected office, which Art. 21 para. 4 of the Charter of Fundamental Rights
and Basic Freedoms5) (hereinafter „Charter“) guarantees him. He states that he fulfills all
of the statute’s substantive, as well as formal, requirements, but still he was disqualified
from standing as a candidate on the basis of the legal interpretation that the civil identity
card may not be used as a document evidencing citizenship of the Czech Republic for the
purposes of a candidate’s registration for election to the Senate. In his opinion, support
for such an interpretation can be found neither in the Act on Elections to the Parliament of
the Czech Republic nor in the Act on the Acquisition and Loss of Citizenship of the Czech
Republic.
The complainant further objected that the Supreme Court violated his right guaranteed by
Art. 38 para. 2 of the Charter,6) for the proceeding was conducted in a manner which did
not allow him the opportunity to give his views on the admitted evidence. On this point,
he also cites the Constitutional Court judgment which annulled § 250f CCP [Code of Civil
Procedure]7).
For all of the above-given reasons, the complainant seeks the annulment of the contested
Supreme Court resolution and requests that he be granted, under § 62 of the Act on the
Constitutional Court, the reimbursement of the costs of his legal representation. In view
of the fast approaching date for the Senate election, he also requests that the
Constitutional Court give priority to deciding his case, as § 39 of the Act on the
Constitutional Court8) empowers it to do. The Constitutional Court, therefore, first of all
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considered the urgency of the matter and, after consideration of all circumstances, came
to the conclusion that the conditions for invoking § 39 of the Act on the Constitutional
Court8) are met.
In its submission made on 14 October 1996, the Supreme Court in essence continued to
adhere to the arguments upon which it rested its decision in the matter. In particular, it
rejected the contention that the declaration of the registrar of a district electoral
commission, who is not authorized to assess whether a person meets the conditions for
eligibility for election, could be accepted in place of a document evidencing
citizenship. In addition, as it stated in its submission, in resolving election disputes, the
Supreme Court has dealt with a number of cases where the registrar came to erroneous
conclusions concerning submitted documents evidencing citizenship. It can be seen from
the record, that the District Electoral Commission gave the candidate explicit written
notification of the fact that a certificate of citizenship is the most suitable means of
meeting the requirements under § 61 para. 4(a) of the Act on Elections to the Parliament
of the Czech Republic.9)
In considering the constitutional complaint, the Constitutional Court first directed its
attention to judging the constitutionality of those provisions of the Act on Elections to the
Parliament of the Czech Republic, the application of which brought on the state of affairs
which form the subject of the constitutional complaint, in this case, the refusal to register
the complainant as a candidate for the election to the Senate.
The basic interpretive principle for any acts which set down more detailed provisions for
the exercise of political rights is without question Art. 22 of the Charter,1) which provides
that every body that applies law is required to interpret and apply the statutory rules in
such a way as to facilitate and protect the free competition among political forces in a
democratic society. In the view of the Constitutional Court, this principle requires that all
provisions of the Act on Elections, as well as of other related statutes, the meaning of
which are open to dispute, be interpreted and applied in favor of the purpose and meaning
of these statutes. At the same time, the purpose and meaning of the law is not to be
sought in the words and clauses of enactments alone. Legal enactments do, and must
always, include within themselves the principles recognized as part of a democratic law
based state. In Art. 1 of the Constitution,10) the Czech Republic declares itself to be just
such a law-based state. If then the purpose of the Act on Elections is to bring to life and
set down more detailed provisions on the basic political right to elect and stand for
election, then contested provisions must always be interpreted in a manner that is
solicitous of this right, that is then, so as to facilitate, to the extent possible, the right to
elect and stand for election, and not the contrary. Apart from this special interpretive
rule for political rights, the Constitutional Court’s opinion also rests on Art. 4 para. 4 of
the Charter11) which provides that, when employing the provisions concerning limitations
on the fundamental rights and basic freedoms, the essence and significance of these rights
and freedoms must be preserved.
Giving consideration to the above-cited constitutional interpretive principle, which without
a doubt binds the Constitutional Court itself as well, the Constitutional Court can come to
no conclusion other than that the constitutional complaint is well-founded.
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In judging the case, all participating state bodies considered the decisive issue to be
whether the civil identity card is or is not a document that adequately evidences that the
holder possesses Czech citizenship. At the same time, they all reached the conclusion
that, for the purposes of candidate registration for elections to the Senate, the document
is insufficient, even despite the fact that § 20 of Act No. 40/1993 Sb,3) on the Acquisition
and Loss of Citizenship of the Czech Republic, School Materials Decision explicitly lists this
document as one of the documents that proves Czech citizenship. The Act on Elections to
the Parliament of the Czech Republic contains no special provision on this issue. The
arguments made by all bodies, including the Supreme Court of the Czech Republic, consists
in the fact that the civil identity card is a special document which cannot be submitted in
duplicate, and further that to submit it would be a violation of the duty imposed on the
holder of the identity card by Act No. 75/1957 Coll., on Civil Identity Cards, that the
registrar of a district electoral commission is not a subject which would be authorized to
take away the civil identity card, and then finally, that it is not possible to certify copies
of the civil identity card (§ 3 para. 3(a) of Act No. 41/1993 Coll., on the Certification that
Copies are Identical with a Document, on the Certification by Municipal Offices that a
Signature is Genuine,12) and on the Issuance of Acknowledgments by Municipal Bodies and
District Offices). With such an interpretation, the bodies applying law raise considerations
of convenience and practicality over the law, and above all over constitutional principles,
and they count any inconsistencies among laws to the detriment of those who are trying to
assert their constitutional rights. The civil identity card is a public document, so that a
presumption applies that it is accurate; thus, unless the contrary is shown, it holds that
the contents of such a certificate correspond to the facts. While it may be possible, even
probable, that it would facilitate the job of the electoral commissions to work with
something that can be copied, certified, and reproduced (for example, with a certificate
on citizenship), this consideration in no way alters the fact that the means which the
complainant chose to prove his citizenship fulfills all of the statute’s requirements. In this
regard, one can also refer to the fact that another Supreme Court Panel, judging in a
different case, came to an identical conclusion.
In the opinion of the Constitutional Court, the grounds described above are in and of
themselves sufficient grounds for granting the constitutional complaint. However, the
Constitutional Court considers it appropriate to give its view on an additional issue as
well. The contested Supreme Court resolution takes no position whatsoever on an issue to
which the complainant raised objections, practically from the beginning of the entire
proceeding. Specifically, he alludes to the fact that he immediately submitted the
document which the electoral commission requested and that, from the very beginning,
there had not been, nor could there have been, any doubt as to whether, at the moment
he submitted his application, the complainant met the conditions for eligibility for
election, that is, possession of Czech citizenship. In this regard, the Constitutional Court
would expect that the Supreme Court would have adopted a position concerning the
character of the proceeding which took place before it pursuant to § 200m of the CCP,13)
namely whether it is or is not possible in this type of proceeding to cure any formal
deficiencies there might be in the application. In view of the systematic placement of §
200m of the CCP,13) there can be no doubt that it is a special proceeding and that,
therefore, it is not related to the part of the CCP on judicial review of administrative
decisions; if the opposite were the case, the court would be bound by the determination of
the facts of the case made by the administrative organ (the electoral commission), and it
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would only be competent to make a judgment as to whether, at the moment the
commission made its decision, it proceeded in accordance with law. The proceeding
before the Supreme Court of the Czech Republic is a proceeding which results in a decision
having no formal relation to the Central Electoral Commission’s decision. Consequently,
with its resolution, the Supreme Court does not modify the decision of the electoral
commission, rather it decides the matter directly. For this reason, the Constitutional
Court does not share the Supreme Court’s views concerning the character of the deadline
given under § 61 para. 5 of the Electoral Act.14) For the same reasons, neither does it
share the opinion of the complainant to the effect that, the Constitutional Court judgment
Pl ÚS 18/96, in which it declared § 250f of the CCP7) to be unconstitutional, should
constitute a fact that is relevant to consideration of this case.
On the basis of all the above-cited reasons, the Constitutional Court declares that the
contested decisions constitute an infringement of Art. 4 para. 411) and Art. 221) of the
Charter and, in consequence thereof, also an infringement of Art. 21 para. 4 of the
Charter5) and Art. 90 of the Constitution.15) In order to ensure that this judgment serves
its purpose, the Constitutional Court hereby annuls the decisions of the Central Electoral
Commission and the District Electoral Commission as well.
Taking into account the fact that this is the first election to the Senate and, thus, also the
first application of a number of provisions of Act No. 247/1995 Coll., the Constitutional
Court considers this judgment, first and foremost, as a decision which should assist in the
future in interpreting this law in a manner that is correct from the perspective of
constitutional law. At the same time, it makes the assumption that the legislature will
consider, in the spirit of this judgment, the possible need for modifications and
clarifications of the text of the Act on Elections to the Parliament of the Czech Republic.
IV. US 275/96
Overview of the most important legal regulations
1. Art. 22 of Act no. 2/1993 Coll., the Charter of Fundamental Rights and Freedoms,
provides that statutory provisions relating to political rights and freedoms, as well as the
interpretation and application of them, shall make possible and protect the free
competition among political forces in a democratic society.
2. Art. 19 par. 2 of Act no. 1/1993 Coll., the Constitution of the CR, provides that any
citizen of the Czech Republic who has the right to vote and has attained the age of forty is
eligible for election to the Senate.
3. § 20 par. 1 of Act no. 40/1993 Coll., on Acquiring and Losing Citizenship of the CR, as
amended by later regulations, provides that citizenship of the CR is proved by a) a citizen
ID card, b) a travel document, c) certification or confirmation of citizenship of the CR, d)
certification of legal capacity to enter into marriage, if this information is stated in it.
4. § 14 par. 1 letter c) of Ministry of the Interior Decree 74/1996 Coll. provides that at
the request of a Regional, District or Central Election Commission, district offices (or the
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appropriate city district offices or town halls) shall disclose facts concerning a candidate’s
citizenship.
5.
Art. 21 par. 4 of Act no. 2/1993 Coll., the Charter of Fundamental Rights and
Freedoms, provides that citizens shall have access, on an equal basis, to any elective and
other public office.
6.
Art. 38 par. 2 of Act no. 2/1993 Coll., the Charter of Fundamental Rights and
Freedoms, provides that everyone has the right to have his case considered in public,
without unnecessary delay, and in his presence, as well as to express his views on all of the
admitted evidence. The public may be excluded only in cases specified by law.
7. § 250 f, of Act no. 99/1963 Coll., the Civil Procedure Code, provided when a court
may decide by a verdict without conducting proceedings. Note: Constitutional Court
Judgment no. 269/1996 Coll. annulled this provision due to conflict with Art. 38 par. 2 of
the Charter and Art. 6 par. 1 of the Convention for the Protection of Human Rights and
Fundamental freedoms.
8. § 39 of Act no. 182/1993 Coll., on the Constitutional Court, as amended by later
regulations, provides that in processing petitions, the Constitutional court does not have to
be governed by the order in which it received the petitions, if it decides that the matter
which the petition concerns is urgent.
9. § 61 par. 4 letter a) of Act no. 247/1995 Coll., on Elections to the Parliament of the
CR and on Amendments and Supplements to Certain Other Acts, in par. 4 letter a)
regulates the requirements for a registration application, which are: the candidate’s first
name and last name, personal ID number, date of birth, municipality of permanent
residence, occupation and a document on citizenship,
10. Art. 1 of Act no. 1/1993 Coll., the Constitution of the CR, provides that the Czech
Republic is a sovereign, unitary, and democratic state governed by the rule of law,
founded on respect for the rights and freedoms of man and of citizens.
11.
Art. 4 par. 4 of Act no. 2/1993 Coll., the Charter of Fundamental Rights and
Freedoms, provides that in employing the provisions concerning limitations upon the
fundamental rights and basic freedoms, the essence and significance of these rights and
freedoms must be preserved; such limitations are not to be misused for purposes other
than those for which they were laid down.
12. § 3 par. 3 letter a) of Act no. 41/1993 Coll., on Verification of the Authenticity of
Signatures by Municipal Offices and on the Issuance of Confirmations by Municipal Bodies
and District Offices, provides that an authority shall not perform verification (i.e. certify
that a transcript or copy corresponds to a document) among other things in the case of a
transcript (copy) of a citizen ID card.
13. § 200m of Act no. 99/1963 Coll., the Civil Procedure Code, as amended by later
regulations, governs proceedings in the matter of elections.
14. § 61 par. 5 of Act no. 247/1995 Coll., on Elections to the Parliament of the CR and on
Amendments and Supplements to Certain Acts, provides that, if the registrar of the district
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election commission determines that an application does not meet the requirements under
the foregoing paragraphs, he shall notify the deputy or independent candidate. Until the
expiration of the deadline under paragraph 3 (i.e. no later than 60 days before the
election day) the deputy or independent candidate can remove any deficiencies.
15. Art. 90 of Act no. 1/1993 Coll., the Constitution of the CR, provides that courts are
called upon above all to provide protection of rights in the legally prescribed manner. Only
a court may decide upon guilt and determine the punishment for a criminal offense.
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